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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number: EB-02-
M.J. Phillips Communications, ) BF-344
Inc. )
Radio Station WJJL ) NAL/Acct.No.
Niagara Falls, New York ) 200332280004
)
FRN: 0004-9421-24
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 28,
2003
By the Resident Agent, Buffalo Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that M.J. Phillips Communications, Inc
(``Phillips''), licensee of radio station WJJL, Niagara Falls,
New York, apparently violated Sections 11.35(a), 11.52(d),
17.4(a), and 73.1560(a)(1)1 of the Commission's Rules (``Rules'')
by failing to determine cause of any failure to receive the
required EAS tests or activations and make the appropriate log
entries, failing to monitor two EAS sources, failing to register
the antenna structure, and failing to maintain operating power
within 105 % of the authorized power. We conclude that Phillips
is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. On September 17 and 18, 2002, the Federal
Communications Commission's (``FCC'') Enforcement Bureau's
Buffalo Office conducted an inspection of radio station WJJL.
The station studios are located in West Seneca, New York and the
transmitter is located in Niagara Falls, New York. An agent
conducted field strength measurements on the evening of September
17 and during the inspection on September 18. The field strength
measurements indicated the station was exceeding the daytime
authorized power of 1000 watts by 250% and exceeding the
authorized nighttime power of 55 watts by 900%. According to the
station log, no EAS tests had been received or sent since July
23, 2002. The station had the capability to monitor only one EAS
source. There were no entries in the station log indicating the
failure to receive the required EAS tests or notifications. The
antenna structure located at 43º 04' 52'' North Latitude and 70º
00' 58'' West Longitude in Niagara Falls, New York, was not
registered with the Commission. The written designation of the
chief operator was not available.
3. On September 23, 2002, the Buffalo Office issued a
Notice of Violation (``NOV'') to Phillips, citing Sections
11.35(a), 11.52(d), 11.61(a)(1)(i), 11.61(a)(2)(i)(A), 17.4(c),
73.1125(d)(1), 73.1560(a)(1), and 73.1870(b)(3)2. On October 6,
2002, Phillips submitted a written response. The response stated
that the failure to conduct and log required EAS tests was
inadvertent and the problem will not reoccur, the station was now
monitoring two EAS sources, the station will submit proper forms
to register the tower, and the station provided a copy of the
written chief operator designation. The station's response also
stated that the cause of the overpower operation was due to a
technical malfunction.
III. DISCUSSION
4. Section 11.35(a) of the rules requires broadcast
stations to determine the cause of any failure to transmit or
receive the required EAS tests or activations specified in
Sections 11.61(a)(1) and (2). Appropriate entries shall be made
in the station log indicating reasons why tests were not
received. According to the station log, no EAS tests or
activations were sent or received from July 23, 2002 through
September 17, 2002. There were no entries in the station log
indicating reasons why the tests were not received.
5. Section 11.52(d) of the rules required broadcast
stations to monitor two EAS sources. At the time of inspection,
the EAS equipment was capable of monitoring only one EAS source.
6. Section 17.4 (a) of the rules requires the owner of any
existing antenna structure that requires notice of proposed
construction to the Federal Administrative Administration to
register the structure with the Federal Communications
Commission. According to Commission records, the antenna
structure located at 43º 04' 52'' North Latitude and 70º 00' 58''
West Longitude in Niagara Falls, New York, was not registered.
7. Section 73.1560(a)(1) of the rules requires broadcast
stations to maintain their operating power as near as practical
to the authorized input power and may not be more than 105% of
the authorized power. Field strength measurements conducted on
September 17 and 18, 2002 indicated the station's operating power
exceeded the authorized daytime power of 1000 watts by at least
250% and exceeded the authorized nighttime power of 55 watts by
at least 900%.
8. Based on the evidence before us, we find that on
September 17 and 18, 2002, Phillips willfully3 and repeatedly4
violated Section 11.35(a), 11.52(d), 17.4(a), and 73.1560(a)(1)
of the Rules by failing to determine the cause of failure to
transmit receive the required EAS tests or activations and make
the appropriate log entries, failing to monitor two EAS sources,
failing to register the antenna structure, and failing to
maintain the authorized operating power. The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303(1999) (``Forfeiture
Policy Statement'')5, sets the base forfeiture amount for failure
to maintain required records at $1,000, failure to make the
required measurements or conduct the required monitoring at
$2,000, failure to file required forms or information at $3,000
and exceeding power limits at $4,000. In assessing the monetary
forfeiture amount, we must take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Communications
Act of 1934, as amended, (``Act''),6 which include the nature,
circumstances, extent, and gravity of the violation, and with
respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and other such matters as
justice may require. The record shows Phillips has a history of
prior violations, and the over-power violation was egregious.
Applying the Forfeiture Policy Statement and the statutory
factors to the instant case and applying the inflation
adjustments, we believe that a ten thousand dollar ($10,000)
forfeiture is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Rules,8 Phillips is hereby NOTIFIED of its APPARENT LIABILITY FOR
A FORFEITURE in the amount of ten thousand dollars ($10,000) for
violating Sections 11.35(a), 11.52(d), 17.4(c), and 731560(a)(1)
of the Rules.
10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Phillips SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332280004, and FRN 0004-9421-24.
12. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. 200332280004.
13. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
14. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.9
15. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested, to M.J. Phillips Communications, Inc., 920 Union Road,
West Seneca, New York 14224.
FEDERAL COMMUNICATIONS COMMISSION
David A. Viglione
Resident Agent
Buffalo Office
_________________________
1 47 C.F.R. §§ 11.35(a), 11.52(d), 17.4(a), and 73.1560(a)(1).
2 47 C.F.R. §§ 11.61(a)(1)(i), 11.61(a)(2)(i)(A), 17.4(c),
73.1125(d)(1), and 73.1870(b)(3). The NOV cited Section 17.4(c),
which was a typographical error since the text was for
Sect.17.4(a), tower registration, the violation verbally advised
during inspection and responded to by the licensee.
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
``willful'', when used with reference to commission or omission
of any act, means that conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act...'' See Southern California Broadcasting
Co., 6 FCC Red 4387 (1991).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
547 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.